bulletin
Employment law update
15 February 2010
With the new Agency Workers Regulations laid before Parliament
last month and further changes to employment law due in April this
year, we take a look at what these mean for employers.
Agency workers’ right to the same conditions as
employees
The Agency Workers Regulations 2010 come into force in
October next year and will entitle agency workers to certain
working and employment conditions, which already apply to
employees, after 12 weeks in the role.
An agency worker is defined in the regulations as, “an
individual who is supplied by a temporary work agency to work
temporarily for and under the direct supervision and direction of a
hirer”
This broad definition will cover virtually all temporary workers
supplied by an employment agency. However, the legislation
specifically excludes situations where the hirer or temporary work
agency is effectively the client or customer of an individual
engaged in a profession or business, so professional consultants
are not covered by the Regulations.
When do agency workers become entitled to these
conditions?
Once an agency worker has worked in the same role with the same
hirer for 12 weeks, they will be entitled to the same terms and
conditions as if they had been recruited directly by that
hirer.
The 12 weeks is calculated on the basis that any week in which
the individual works is counted as one week, even if this is just
for a few hours. There is no requirement that the 12 weeks must be
completed within any particular period, provided that the agency
worker stays in the same role. This could mean that an agency
worker who only worked once a month (for example) could build up
the 12 weeks over a long period of time and so gain protection.
Breaks of up to six weeks are permitted, provided that work is done
in at least 12 weeks. Longer breaks will be allowed for other
reasons such as maternity, sickness or jury duty.
Which terms and conditions does an agency worker become
entitled to?
The agency worker will be entitled to the following after the 12
week period:
- Pay, including any entitlement to fees, commission, bonuses and
holiday pay; but excluding expenses, sick pay, pension payments,
maternity/paternity pay and redundancy pay amongst others. Bonuses
or incentives which are not directly attributable to the agency
worker’s performance are not covered, for example there will be no
entitlement to an annual bonus based on the hirer’s profits.
- Terms relating to the duration of working time, night work,
rest periods, rest breaks and annual leave. This means agency
workers will become entitled to the same protection that employees
and workers are entitled to under the Working Time Regulations,
even though they are not directly protected.
In addition, agency workers are entitled to the following from
the first day of their assignment:
- Use of the collective facilities and amenities provided to
employees and workers including canteens, child care facilities and
transport services.
- The right to be kept informed by the hirer of any relevant
vacant posts within the hirer, so that they have the opportunity to
find permanent employment.
What impact will this have on my
organisation?
The new regulations will not have a substantial impact on the
way many employers operate. Although employers may need to increase
agency workers’ rates of pay, much of this burden may be shifted to
the temporary work agency, which may result in lower profit margins
if they have to increase the pay to their workers.
Many agencies market themselves as providing agency workers at a
cheaper rate than the hirer’s own employees, so unless they are
able to cycle agency workers out before 12 weeks, this marketing
strategy may be impossible to achieve.
If agency workers are genuinely used on a flexible basis to
provide cover where needed, these regulations will have very little
impact, other than to ensure that they are paid at a comparable
rate to employees or workers. Employers who use agency workers as a
cheap source of labour may find they have more of a problem,
particularly if they tend to pay lower rates for agency workers
than they pay employees. This could lead to further expenditure on
wages, or wasted time in cycling through and training new agency
workers to ensure they do not reach complete the twelve week
qualification.
What liabilities could my organisation
face?
An agency worker can complain to an employment tribunal that
they have not received the pay or other facilities they are
entitled to under the regulations. An employment tribunal may:
- Award compensation, which shall not ordinarily be less than two
weeks pay
- Award compensation for other expenses incurred by the agency
worker as a result of the breach
- Award additional compensation up to £5,000 if it finds that an
agency worker has been moved between assignments to prevent them
accruing the 12 weeks service.
Crucially, the regulations do not provide protection from unfair
dismissal (save in limited circumstances where an agency worker is
subjected to a detriment because he or she sought to rely on rights
conferred by the regulations) so a hirer can still retain the
flexibility of shedding agency workers when they are no longer
needed.
The right to request time off for training and study
From 6 April 2010, employees in organisations with 250 or more
employees will have a right to request unpaid time off for
training.
How should an employee make a request?
Employees with 26 weeks’ service will be entitled to request
time off for study or training for the purpose of improving their
effectiveness at work and the performance of their employer's
business. In making a request, the employee must include certain
information:
- A statement that the request is made under section 63D of the
Employment Rights Act 1996
- The subject matter of the training
- Where and when it would take place
- Who would provide or supervise it
- What qualification (if any) it would lead to
- How the employee thinks the study or training would improve
both the employee's effectiveness in the employer's business, and
the performance of the employer’s business.
Can I refuse a request?
Employers can refuse a request if there are ‘sound business
reasons’ for doing so, for example, that the study or training is
not beneficial to the employer’s business. Other grounds could
include that the employer is unable to recruit additional staff to
cover the employee, or work cannot be re-organised amongst other
staff.
How should I deal with a request?
The procedure for dealing with such requests closely mirrors the
existing procedure for flexible working requests, including the
right for an employee to appeal against a decision.
The good news for employers is that they are not required to pay
for the training / study (although they may choose to if it would
benefit their business) or the employee’s salary for the time they
take off.
If an employer is found to unreasonably refuse an employee’s
request a tribunal can order limited capped compensation or that
the employer reconsider the request. There is also protection
against detrimental treatment for employees as a result of making a
request.
We recommend that employers adopt a policy for dealing with
requests, so that employees know the procedure for making requests
and how they will be dealt with.
Paternity leave extension to 26 weeks
The right to take additional paternity leave will apply:
- In birth cases, where the expected week of childbirth begins on
or after 3 April 2011; and
- In adoption cases, where the child is matched for adoption on
or after 3 April 2011
Who is entitled?
Employees who have completed 26 weeks’ continuous employment at
least 15 weeks before the expected week of confinement.
The employee must be the father of the child, or be the partner
of the mother, and expect to have the main responsibility (other
than the mother) for the child’s upbringing. This requirement
already applies to the existing scheme for statutory paternity
leave.
The employee only becomes entitled if the child’s mother returns
to work before the end of her ordinary or additional maternity
leave entitlement. The scheme is not intended to allow both parents
to take leave at the same time, but is to provide flexibility so
the father (or mother’s partner) can take leave should the mother
wish to return to work.
When can the leave be taken?
The additional paternity leave cannot be taken in the first 20
weeks after the birth of the child, and must be taken before the
child’s first birthday.
The employee must give at least eight weeks’ notice of their
intention to take the additional paternity leave.
The employee must provide his or her employer with:
- A ‘leave notice’ setting out the child’s date of birth or
expected week of birth and the period for which the employee
intends to take leave
- An ‘employee declaration’ stating that the purpose of taking
leave will be to care for the child and that the employee is the
child’s father or partner of the child’s mother, and will have the
main responsibility for caring for the upbringing of the child
(aside from the mother)
In addition to a ‘mother declaration’ which is a written
declaration by the mother setting out:
- The mother’s name and address
- The date the mother intends to return to work
- The mother’s national insurance number
- That the employee claiming the leave is the child’s father or
mother’s partner etc
- That the employee claiming is the only person (to her
knowledge) claiming paternity leave in respect of the child
- That the mother consents to the employer processing the
information contained in the documentation
If the employer so requests, the employee must provide a copy of
the child’s birth certificate and the name and address of the
mother’s employer.
How long can the employee take?
The employee can take up to 26 weeks’ additional paternity
leave, but must take at least 2 weeks if any is to be taken at all.
The leave must be taken in one continuous period.
Is the employee entitled to paternity pay?
Virtually all employees who are entitled to statutory paternity
leave will be entitled to statutory paternity pay. This is the same
rate as statutory maternity pay (currently the lower of £123.06 or
90% of the employee’s weekly earnings).
Other rights
All the terms and conditions of employment except those relating
to remuneration will apply throughout the paternity leave period.
Thus the employee will still be entitled to any benefits such as a
company car or childcare vouchers.
The employee will have the same right as a mother taking
maternity leave to return to the same job under the same terms and
conditions. The employee also has the right to attend work through
‘keeping in touch’ days without the period of paternity leave
ending early.
talk to us
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.